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[2025] NSWLEC 1562
General information, not legal advice.
Land and Environment Court (NSW)
2025-08-07
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Rapisarda Holdings Pty Ltd as Trustee for the Rapisarda Property Trust v City of Parramatta Council [2025] NSWLEC 1562
Hearing dates: Hearing and conciliation conference on 7 - 8 May 2025
Date of orders: 07 August 2025
Decision date: 07 August 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application DA/837/2022 as amended, for the construction of an 8-storey mixed use building containing ground floor commercial space, 49 co-living rooms, indoor and outdoor communal spaces, and one level of basement storage at 183 Macquarie Street, Parramatta is determined by the grant of consent subject to the conditions at Annexure A.
(3) The applicant is to pay the respondent’s costs thrown away as a result of the most recent amendments made to the Development Application in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $7,417.
Catchwords: DEVELOPMENT APPLICATION – mixed use building – co-living – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), s 38 Paramatta Local Environmental Plan 2023, cl 1.8A Parramatta Local Environmental Plan 2011 (repealed), Pt 7, cll 4.3, 4.4, 5.21, 7.3, 6.1, 6.2, 7.9, 7.11, 7.12, 7.15, 7.22, 7.24, 7.25, 8.1, 8.2 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10, pt 10.2, s 10.10 (repealed) State Environmental Planning Policy (Housing) 2021, Ch 3, Pt 3, ss 67, 68, 69, State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021. S 2.91, 2.98, 2.99, 2.100, 2.119 State Environmental Planning Policy Amendment (Water Catchments) 2022, s 6.65
Texts Cited: Parramatta City Council, Affordable Rental Housing Policy, 8 August 2024
Category: Principal judgment
Parties: Rapisarda Holdings Pty Ltd as Trustee for the Rapisarda Property Trust (Applicant)
City of Parramatta Council (Respondent)
Representation: Counsel:
T To (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sparke Helmore (Respondent)
File Number(s): 2024/142854
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Paramatta City Council of Development Application 837/2022. This application has been made by Rapisarda Holdings Pty Ltd as Trustee for the Rapisarda Property Trust, and seeks consent for the construction of an 11-storey mixed-use building containing ground floor retail/commercial space and 66 co-living rooms over one level of basement at 183 Macquarie Street, Parramatta legally known as Lot A DP 375159 (subject site).
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
Following an earlier unsuccessful conciliation conference, the matter was listed for hearing, commencing 7 May 2025. At the commencement of the hearing, the parties indicated that they had continued to conciliate on a without prejudice basis, and that the issues in contention had been resolved through proposed amendments to the application. Subsequently, at the parties’ request, the Court arranged a further conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) which was held on 8 May 2025, and over which I presided.
At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting consent to the development application subject to conditions.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments included:
The removal of 3 levels from the building height (from 11 storeys down to 8);
An increase in floor to floor levels from 2.95 to 3.1m;
The removal of the building setback to Macquarie Street;
Increase in the length of the internal light well from 6m to 9m;
A reduction in the number of units from 66 to 49;
An increase in the height of the ground floor level adjacent to the lift to RL6.9 in order to be above the flood planning level.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified in a jurisdictional note. From this, I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 3 to 24 November 2022. Eight submissions were received in this period. The amended application described above was renotified from 7 April to 2 May 2025. One submission was received, and one oral submission was made at the commencement of proceedings.
As the application includes co-living housing, Pt 3 of Ch 3 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to the development. Pursuant to s 67(b) of the Housing SEPP, development for the purposes of co-living housing may be carried out with consent on this land if development for the purposes of residential flat buildings is permitted under another environmental planning instrument.
The subject site is zoned B4 Mixed Use under the former Parramatta Local Environmental Plan 2011 (PLEP), which applies due to savings provisions within cl 1.8A of the Paramatta Local Environmental Plan 2023. Development for the purposes of residential flat buildings is permitted with consent in the B4 zone, and therefore co-living housing is permitted under the Housing SEPP. Further, under the PLEP, commercial premises are expressly permissible with consent within this zone, and development for the purposes of co-living is innominately permissible within this zone under the provision of ‘any other development not specified in item 2 or 4’ in the land use table. The proposed development is also consistent with the objectives of the B4 zone.
Section 68 of the Housing SEPP includes a number of non-discretionary standards for co-living housing, to which the proposed development complies for the following reasons:
The floor space ratio (FSR) of the proposed development is not more than the maximum permissible FSR for residential accommodation on the land (s 68(2)(a)(i)).
The proposed development achieves the required quantity of communal living area with a minimum dimension of 3m (s 68(2)(c)).
Communal open space of 20% of the site area with a minimum dimension of 3m is achieved (s 68(2)(d)).
No parking spaces have been provided, contravening the requirement at s 68(2)(e). Accordingly, a written request to vary this development standard has been prepared pursuant to cl 4.6 of the PLEP. I am satisfied that the written request adequately demonstrates that compliance with this control is unreasonable or unnecessary, and further that there are sufficient environmental planning grounds, for the following reasons:
(a) Compliance with the car parking standard of the Housing SEPP is unreasonable or unnecessary in the circumstances of this case as the underlying objectives of the development standard and the objectives of the zone are achieved despite the non-compliance. (b) Sufficient environmental planning grounds are provided to justify the non-compliance, in that the provision of vehicular access would present significant operational and safety risks to the adjacent light rail line, and that the lack of parking is justified due to the proximity to high capacity public transport and major services, and maintaining affordable rental prices for future tenants.
Section 69 of the Housing SEPP provides further standards for co-living housing. Pursuant to these requirements, from the architectural drawings within the s 34 agreement bundle, I am satisfied that:
All private rooms comply with the size requirements of s 69(1)(a).
Although the lot size of 487.3m2 is less than the minimum lot size of 800m2 under s 69(1)(b), a second request has been submitted pursuant to cl 4.6 of the PLEP to vary this development standard. From this request, I am satisfied that compliance with the minimum lot size standard is unreasonable and unnecessary in the circumstances of this case, and that sufficient environmental planning grounds have been provided, for the following reasons:
(a) Compliance with the minimum lot size requirement of the Housing SEPP is unreasonable or unnecessary in the circumstances of this case as the underlying objectives of the development standard and the objectives of the zone are achieved despite the non-compliance. (b) Sufficient environmental planning grounds are provided to justify the non-compliance, in that the proposed development is consistent with all other relevant provisions of the PLEP and the Parramatta Council Affordable Rental Housing Policy. Further, it will provide affordable rental accommodation for key workers in a location that is close to employment, amenities, and transport. Finally, the PLEP does not contain any equivalent minimum allotment size, and so contravention of this control will not result in a localised inconsistency.
An appropriate workspace will be provided for the manager on level 7 (s 69(1)(d)).
No residential units are proposed on the ground floor (s 69(1)(e)).
Adequate bathroom, laundry, and kitchen facilities will be available within the development for the use of each occupant (s 69(1)(f)).
The proposed development provides a maximum of two occupants per room (s 69(1)(f)).
Adequate bicycle and motorcycle parking spaces will be provided (s 69(1)(h)).
The savings provisions within the State Environmental Planning Policy Amendment (Water Catchments) 2022 at s 6.65 mean that, as the development application was lodged on 25 October 2022, the former provisions of Ch 10 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) apply to this development. Although there are no jurisdictional provisions under Ch 10, the parties submit, and I accept that the proposed development is consistent with the planning principles for land within the Sydney Harbour Catchment at Pt 10.2, s 10.10 of the Biodiversity SEPP.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the Preliminary Site Investigation by EI Australia dated 13 June 2023, I accept that the site has a history of residential use and there is no known contamination nor any history of contaminating activities and, subject to the agreed conditions of consent, the site is suitable for the intended use from a contamination perspective.
Macquarie Street, which the site fronts, is a Rail Corridor within the meaning of s 2.91 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP). In accordance with the requirements of s 2.98 and s 2.99 of the Transport SEPP, the parties submit and I accept that the proposed development was referred to Transport for NSW (TfNSW), and then re-referred following amendments. The concurrence and response from TfNSW was taken into consideration, and the recommended conditions of consent have been incorporated into the agreed conditions that now form Annexure A. I further accept that the considerations listed at s 2.99(4) have been taken into account.
Pursuant to the Transport SEPP, s 2.100, from the parties’ submission, the Noise Impact Assessment by PWNA dated 15 June 2023, and the agreed conditions of consent, I accept that appropriate measures will be taken to ensure that the LAeq levels set out in s 2.100(3) are not exceeded.
Macquarie Street is a classified road, and therefore the provisions of s 2.119 of the Transport SEPP apply. From the parties’ submission and the report by CJP Consulting Engineers dated 5 May 2025, I accept that there is no alternative vehicular access other than Macquarie Street, however the safety, efficiency, and ongoing operation of this road will not be adversely affected by the development as a result of any of the matters listed in s 2.119(2)(b) of the Transport SEPP. I further accept that the development has been appropriately located and designed to ameliorate potential traffic noise or vehicle emissions, noting that the road is a transitway, not one heavily trafficked by vehicles.
Pursuant to the PLEP, cl 4.3 a maximum building height of 145m applies to the subject site. The proposed development complies with this development standard with a maximum height of 32.84m.
PLEP cl 4.4 and cl 7.3 establishes a maximum floor space ratio (FSR) for the site of 6:1. The proposed development again complies with this development standard with an FSR of 4.67:1.
The site is not identified as a heritage item, nor located within a heritage conservation area however local archaeological sensitivity is identified. The parties submit, and I accept, that this will be managed through the agreed conditions of consent.
The site is identified as being within a flood prone area. From the flooding assessment and flood emergency management plan by Telford Civil and Stormwater Engineers, both dated 24 April 2025, and the parties’ submission, I accept that the matters listed in the PLEP, cl 5.21(3) have been considered, and that the proposed development will meet the requirements of cl 5.21(2) and cl 7.9.
Pursuant to the PLEP cl 6.1, the site is identified as Class 4 on the Acid Sulfate Soils Map, and contains excavation more than 2m below the natural ground surface. Accordingly, an Acid Sulfate Soils Management Plan has been prepared by EI Australia that meets the requirements of the PLEP cl 6.1.
PLEP cl 6.2(3) lists a number of matters relating to earthworks. From the parties’ submission and the ‘comment in relation to cl 6.2 of the PLEP’ prepared by Think Planners dated 7 May 2025, I accept that the matters listed in cl 6.2(3) have been considered and the proposed earthworks are acceptable.
The site is mapped as being within the Parramatta City Centre, and accordingly the provisions of the PLEP Pt 7 apply to the development.
Pursuant to the PLEP cl 7.8, development within this site is required to have an active frontage for the entirety of the street frontage to Macquarie Street. Compliance with this is demonstrated on the amended architectural plans.
PLEP, cl 7.11 provides that the development must exhibit design excellence. A statement addressing the considerations listed in cl 7.11(2) has been prepared by AE Design Partnership dated 9 April 2025 which demonstrates that the proposed development exhibits design excellence when considered against the matters listed at cl 7.11(2). The development is not of a type that requires a competitive design process pursuant to cl 7.12.
PLEP, cl 7.15 does not provide parking rates for co-living housing, and the rates for business and office premises and retail premises are maximum standards. The proposed development does not include parking, which is consistent with the requirements of this clause.
Pursuant to the requirements of PLEP, cl 7.22, from the agreed conditions of consent and the parties’ submission I accept that the proposed building will use a dual water reticulation system.
PLEP, cl 7.24 provides additional restrictions on FSR for development on this site, requiring an FSR of at least 1:1 for commercial purposes. The proposed development exceeds this, meeting the requirements of this clause.
PLEP, cl 7.25(1) provides that development consent on this land must not be granted unless the consent authority has obtained the concurrence of the Planning Secretary. Accordingly, this concurrence was provided on 24 July 2025.
PLEP, cl 7.25(2) requires the Planning Secretary to consider, amongst other things, whether a planning agreement has been, or will be, entered into contributing to designated State public infrastructure. The Applicant and the Minister administering the EPA Act have agreed to enter into a voluntary planning agreement (VPA), and condition 2A of the agreed conditions of consent requires that, prior to the issue of a construction certificate, the applicant is to provide evidence of the executed VPA, meeting the requirements of this clause.
PLEP, cl 8.1 requires the Secretary to certify in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to the land on which the development is to be carried out. This certification was provided on 22 July 2025.
Finally, from the parties’ submission, I accept that adequate arrangements have been made to ensure that the supply of water and electricity, and the disposal and management of sewage will be made available to the development pursuant to the PLEP, cl 8.2.
For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act and accordingly, I am required under s 34(3) to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
Regarding the costs order 1 of the notice of motion directions made on 4 March 2025, the parties agree that the applicant is to pay the respondent’s costs in the amount of $2,100.
The City of Parramatta Council as the relevant consent authority, has approved, under cl 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the applicant amending Development Application DA/837/2022 to include the documents listed below:
| Drawing | Issue | Plan Title | Dated | | Amended Architectural Plans | | DA-3 | Y | Site Plan | 30 April 2025 | | DA-4 | Y | Basement Floor Plan | 30 April 2025 | | DA-5 | Y | Ground Floor Plan | 30 April 2025 | | DA-6 | Y | Level 1 Floor Plan | 30 April 2025 | | DA-7 | Y | Level 2 Floor Plan | 30 April 2025 | | DA-8 | Y | Typical Floor Plan (Level 3 – 5) | 30 April 2025 | | DA-9 | Y | Level 6 Floor Plan | 30 April 2025 | | DA-10 | Y | Level 7 Floor Plan | 30 April 2025 | | DA-11 | Y | Roof Terrace Floor Plan | 30 April 2025 | | DA-12 | Y | Roof Plan | 30 April 2025 | | DA-13 | Y | FSR Area Calculation – 01 | 30 April 2025 | | DA-14 | Y | FSR Area Calculation – 02 | 30 April 2025 | | DA-15 | Y | Section A | 30 April 2025 | | DA-16 | Y | Section B | 30 April 2025 | | DA- 17 | Y | Section C | 30 April 2025 | | DA-18 | Y | Section D | 30 April 2025 | | DA-19 | Y | North & South Elevations | 30 April 2025 | | DA-20 | Y | East Elevation | 30 April 2025 | | DA-21 | Y | West Elevation | 30 April 2025 | | DA-22 | Y | North Street Elevation | 30 April 2025 | | DA-23 | Y | Area Compliance Diagrams | 30 April 2025 | | DA-24 | Y | Shadow Diagrams – Sheet 1 | 30 April 2025 | | DA-25 | Y | Shadow Diagrams – Sheet 2 | 30 April 2025 | | DA-26 | Y | Shadow Diagrams – Sheet 3 | 30 April 2025 | | DA-27 | Y | Shadow Diagrams – Sheet 4 | 30 April 2025 | | DA-28 | Y | Solar Study Diagrams – Eye of the Sun | 30 April 2025 | | DA-29 | Y | Solar Study Diagrams | 30 April 2025 |
| Drawing | Issue | Plan Title | Dated | | DA-30 | Y | Room Type A, B & C | 30 April 2025 | | DA-31 | Y | Accessible Room | 30 April 2025 | | DA-32 | Y | Section Details | 30 April 2025 | | | B | Survey Plan | 15 May 2024 | | DA-34 | Y | Elevations of Existing Neighbours | 30 April 2025 | | DA-35 | Y | Public Domain Plan | 30 April 2025 | | DA-36 | Y | 3D View | 30 April 2025 | | DA-37 | Y | Ground Floor Plan – 12 Charles Street | 30 April 2025 | | DA-38 | Y | Level 1 Floor Plan – 12 Charles Street | 30 April 2025 | | DA-39 | Y | Level 2 Floor Plan – 12 Charles Street | 30 April 2025 | | DA-40 | Y | Level 3 – 5 Floor Plan – 12 Charles Street | 30 April 2025 | | DA-41 | Y | Level 6 Floor Plan – 12 Charles Street | 30 April 2025 | | DA-42 | Y | Level 7 – 10 Floor Plan – 12 Charles Street | 30 April 2025 | | DA-43 | Y | Level 11 – 39 Floor Plan – 12 Charles Street | 30 April 2025 | | DA-44 | Y | Level 40 Floor Plan – 12 Charles Street | 30 April 2025 | | DA-45 | Y | Level 41 Floor Plan – 12 Charles Street | 30 April 2025 | | DA-46 | Y | GFA Diagrams – 12 Charles Street | 30 April 2025 | | DA-47 | Y | Solar & natural Cross Ventilation Compliance Table – 12 Charles Street | 30 April 2025 | | DA-48 | Y | North Street Elevation – 12 Charles Street | 30 April 2025 | | Amended Landscape Plans | | 000 | I | Landscape Cover Sheet | 1 May 2025 | | C101 | I | Landscape Colour Plan Ground Floor | 1 May 2025 | | 101 | I | Ground Floor | 1 May 2025 | | 102 | I | Ground Floor – Indicative Materials & Design Character | 1 May 2025 | | 103 | I | Level 2 | 1 May 2025 | | 104 | I | Level 4 & 6 Light Well & Rooftop Terrace | 1 May 2025 | | 501 | I | Landscape Specification Notes/Planting Schedule | 1 May 2025 | | 502 | I | Landscape Details | 1 May 2025 | | 503 | I | Landscape Details | 1 May 2025 |
| Drawing | Issue | Plan Title | Dated | | Amended Reports | | Schedule of Amendments prepared by PTI Architecture | 5 May 2025 | | Flood Assessment against Clause 5.21 and 7.9 of the Parramatta LEP 2011 prepared by Telford Civil | 24 April 2025 | | Amended Flood Emergency Management Plan prepared by Telford Civil | 24 April 2025 | | Clause 4.6 Variation Request – Minimum allotment size prepared by Think Planners | 5 May 2025 | | Clause 4.6 Variation Request – Minimum car park rates prepared by Think Planners | 5 May 2025 | | Amended Waste and Loading Plan of Management prepared by Think Planners | 5 May 2025 | | Design Excellence Statement prepared by AE Design | 9 April 2025 | | Draft Voluntary Planning Agreement between Rapisarda Holdings Pty Ltd and the Minister administering the Environmental Planning and Assessment Act | 17 March 2025 | | Valuation Assessment for 12 Charles Street, Parramatta prepared by Property Logic | 4 April 2024 | | Traffic Compliance Statement regarding s 2.119 of the Transport SEPP prepared by CJP Consulting Engineers | 5 May 2025 | | Amended Public Art Plan prepared by Site Image Landscape | 2 May 2025 |
The Court orders:
The appeal is upheld.
Development Application DA/837/2022 as amended, for the construction of an 8-storey mixed use building containing ground floor commercial space, 49 co-living rooms, indoor and outdoor communal spaces and one level of basement storage at 183 Macquarie Street, Parramatta is determined by the grant of consent subject to the conditions at Annexure A.
The applicant is to pay the respondent’s costs thrown away as a result of the most recent amendments made to the Development Application in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed amount of $7,417.
Annexure A (498 KB, pdf)
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Rapisarda Holdings Pty Ltd as Trustee for the Rapisarda Property Trust
City of Parramatta Council [2025] NSWLEC 1562